Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Bangladesh (Ratificación : 1972)

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Observación

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The Committee takes note of the Government’s report dated 19 September 2023 on progress made in the implementation of the road map of actions to address all outstanding issues in the complaint pending under article 26 of the ILO Constitution concerning this Convention, among others, as well as the decision adopted by the Governing Body at its 349th Session (November 2023) requesting the Government to report on further progress made to its 350th Session (March 2024) and to defer the decision on further action to that session.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 27 September 2023 and of the Trade Union Committee of International Labour Standards (TU-ILS) (a committee of the workers’ representatives from the National Coordination Committee for Workers’ Education (NCCWE) and IndustriALL Bangladesh Council (IBC)) submitted by the Government, as well as the Government’s response to the latter observations. Both the ITUC and the TU-ILS refer to matters addressed in this comment, pointing to legislative and practical difficulties in the application of the Convention. The Committee also notes the Government’s reply to the 2019 and 2020 ITUC observations alleging massive anti-union dismissal of garment workers.

The Committee notes the observations of the Bangladesh Employers’ Federation (BEF), transmitted with the Government’s report.

The Committee notes the 2022 amendment to the Bangladesh Labour Rules (BLR) and the adoption in 2022 of the Bangladesh Export Processing Zones Labour Rules (EPZ Labour Rules). The Committee further observes from the Government’s statement to the Governing Body, within the framework of the discussions on the article 26 proceedings, that the Parliament approved an amendment to the Bangladesh Labour Act (BLA) in November 2023. The Committee has however been subsequently informed that the President has sent the amended law back to the Parliament for further consideration and firmly expects that the opportunity will be taken to address its pending comments. The Committee requests the Government to provide detailed information on the progress made in this regard.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, the Committee requested the Government to continue to provide detailed statistics on the follow-up to complaints of anti-union discrimination and encouraged continued training of the relevant labour officials. It requested information on the functioning in practice of the Workers’ Resource Centre and expressed its expectation that the online database on anti-union discrimination would be fully functional. The Committee notes the Government’s indication that between 2020 and April 2023, 60 complaints of anti-union discrimination and unfair labour practices were received by the Department of Labour (DOL), out of which 39 were settled (37 settled amicably and 2 cases filed in labour courts) and 21 cases are undergoing investigation. The Government also informs on trainings and workshops concerning the standard operating procedures (SOPs) on unfair labour practices and anti-union discrimination provided to relevant government officials and workers’ and employers’ representatives. It further provides information on the Workers’ Resource Centre and a link to the online database on anti-union complaints. While welcoming this information, the Committee observes that the ITUC and the TU-ILS raise concerns as to anti-union tendencies of the security forces and anti-union discrimination by factories without investigations and dissuasive sanctions, as well as a backlog of labour cases in the courts. They allege that: there is a lack of appropriate procedures and remedies for unfair labour practice complaints in the BLR; DOL investigations of anti-union practices lack transparency and do not follow the SOPs; filing a case to the court remains a prerogative of the DOL, instead of the concerned workers; and there is a need for awareness-raising among workers on the online database. Taking note of the above, the Committee requests the Government to continue to engage in training activities of the relevant officials to ensure an efficient and transparent handling of anti-union discrimination complaints in line with the applicable SOPs and to provide the relevant statistics on the follow-up to the complaints, specifying the number and the nature of the sanctions imposed. The Committee also requests the Government to clarify whether, in line with section 213 of the BLA, a worker can address a complaint concerning anti-union discrimination directly to the labour court or whether referral to the DOL is a mandatory step in the procedure. The Committee further encourages the Government to promote the use of the online database among the workers, including through the Workers’ Resource Centre, and to work together with representative workers’ organizations on improving the functioning of the database.

The Committee also requested the Government to take the necessary measures, after consultation with the social partners, to increase the amount of the fines imposable for acts of anti-union discrimination. The Committee understands from the Government’s statement to the Governing Body, within the framework of the discussions on the article 26 proceedings, that an amendment was made to section 291(1) of the BLA which increases the penalty for unfair labour practices and anti-union discrimination acts of employers (violations of sections 195 or 196A) from 10,000 Bangladeshi taka (BDT) (equals to US$120) to BDT15,000 (equals to US$136). While taking due note of this amendment, the Committee observes that the increase in penalties for acts of anti-union discrimination would still appear not to represent a sufficiently dissuasive sanction. The Committee therefore urges the Government to take the necessary measures, after genuine consultation with the social partners, to review the relevant provisions of the BLA so as to increase the amount of penalties imposable on employers for acts of anti-union discrimination in order to ensure that such acts give rise to a just reparation and sufficiently dissuasive sanctions.

In its previous comment, the Committee also requested the Government to provide further information on the outcome of the 5,407 labour-related complaints received and solved through the helpline in the ready-made garment sector and on the measures taken to ensure anonymity of the process. It encouraged the Government to continue to formally expand the helpline to other geographical areas and industrial sectors. While observing that the Government does not provide any details as to the outcome of the complaints or the measures to ensure anonymity, the Committee welcomes the Government’s statement that the helpline has now been expanded to all geographical areas and industrial sectors. The Government also indicates that 1,307 complaints were received between 2022 and 2023, out of which 1,210 were solved and 97 are being processed. Further noting the TU-ILS suggestion to conduct mass-level awareness raising campaigns among workers and to categorize the outcomes of the complaints to allow for appropriate remedial action, the Committee encourages the Government to engage with the social partners to further improve the functioning of the complaint procedure and to raise awareness about it among the workers.The Committee trusts that the helpline will contribute to a speedy resolution of reported labour complaints, including those related to anti-union practices.

Allegations of anti-union discrimination following the 2018–19 minimum wage protests. In its previous comment, the Committee requested the Government to clarify its involvement in the investigations into the massive dismissals of workers following the 2018–19 minimum wage protests and to provide information on the concrete remedies applied in all cases of termination for anti-union reasons. The Committee notes with regret that the Government does not provide any updates in this regard and simply reiterates previously provided information. It adds that 29 committees composed of officials from the DOL and the Department of Inspection for Factories and Establishments (DIFE) were formed in eight labour intensive districts to, among others, publicize about a newly introduced DIFE helpline and to dispose of issues relating to termination or dismissal of workers. Given the time that has elapsed since the 2018–19 minimum wage protests and observing that the Committee on Freedom of Association is also examining these incidents in the framework of Case No. 3263, the Committee expects the Government to ensure that, where this has not yet been the case, independent investigations will be conducted and, where appropriate, adequate remedies and sufficiently dissuasive sanctions ordered.

Case concerning dismissed workers in the mining sector. In its previous comment, the Committee expressed its expectation that the case pending against dismissed workers in the mining sector who were charged with illegal activities would be completed rapidly. The Committee notes the Government’s indication that the case is currently pending at the District Sessions Court, Dinajpur and that despite several hearings having been scheduled, they did not take place due to requests by both parties for time extension. Regretting the delay in concluding these proceedings, which relate to incidents dating back to 2012, the Committee requests the Government to provide information on the outcome of the judgment and, in particular, to indicate any aspects of the case relating to alleged anti-union practices.

Allegations of anti-union discrimination in practice and of inadequate judicial response. The Committee observes the TU-ILS concerns that incidents of anti-union discrimination are very common and that cases in labour courts are lengthy and often dismissed. Recalling that improving measures to address instances of anti-union discrimination and unfair labour practices is one area of the Government’s road map established in the framework of the article 26 proceedings and recalling that the Government regularly reiterates its commitment to reduce the backlog of cases in labour courts, including through the development of conciliation and arbitration as alternative dispute resolution mechanisms, the Committee urges the Government to provide updates in this respect and expects serious and concrete measures to be taken to eliminate the occurrence of systematic anti-union discrimination in practice. The Committee further requests the Government to provide information on the average duration of judicial proceedings relating to allegations of anti-union discrimination.

Protection of workers in export-processing zones (EPZs) against acts of anti-union discrimination. In its previous comment, the Committee requested the Government to provide detailed statistics on the follow-up to anti-union discrimination complaints brought to the competent authorities in EPZs. While taking note of the Government’s indication that, as of July 2023, out of the total of 7,192 calls received through the helpline established in EPZs, none were related to anti-union discrimination, the Committee observes that the Government does not refer to any of the other procedures that it had previously indicated were in place to ensure protection against anti-union discrimination, including inspection and monitoring by the Bangladesh Export Processing Zones Authority (BEPZA) and other complaint procedures. The TU-ILS suggests that statistics compiled by the Government should be published to be accessible to workers’ organizations. In line with the above, the Committee requests the Government once again to provide statistical information on anti-union discrimination complaints in EPZs, whether received through the helpline or otherwise brought to the attention of the competent authorities, and to indicate, in particular, their follow-up and remedies and sanctions imposed.

The Committee further recalls from its previous comment that a number of provisions of the Bangladesh Export Processing Zones Labour Act (ELA) needed to be amended to ensure that all workers covered by the Convention are adequately protected against acts of anti-union discrimination. The Committee notes the Government’s indication that the Committee’s recommendations will be placed before the Tripartite Standing Committee at the time of revision of the law and points to ongoing trainings on this matter provided by the BEPZA. The Committee also observes from the Government’s report under the Freedom of Association and the Right to Organise Convention, 1948 (No. 87) that the amendment process of the ELA started in July 2023, including consultations with the social partners, and should be completed by 2025. Recalling the need to substantially amend the ELA to achieve its compliance with the Convention, the Committee expects the Government to ensure that the pending issues highlighted in its previous comment, which relate to sections 2(48), 93, 115(2), 121(2)-(4), 151 and 157, will be duly reviewed and addressed in the ongoing legislative reform, so as to ensure that all workers covered by the Convention are adequately protected against acts of anti-union discrimination.

The Committee also requested the Government to provide its observations on the allegations communicated by the ITUC referring to widespread anti-union practices in the country, illustrated by the dismissal of 36 workers in two EPZ factories in April 2019 following unsuccessful attempts at collective bargaining. The Government indicates that the BEPZA does not have sufficient information to provide a reply on this point. Considering that the Committee does not have in its possession any other details in this regard, it invites the Government to forward the 2019 ITUC observations to the relevant EPZ authorities and invites the ITUC to provide any relevant details that may assist the authorities in providing their observations and addressing the denounced practices.

Articles 2 and 3. Lack of legislative protection against acts of interference in the BLA and the ELA. In its previous comment, the Committee requested the Government to take all necessary measures to broaden the scope of protection against acts of interference in the BLA and the ELA. The Committee notes the Government’s indication that the applicable legal provisions offer sufficient protection against acts of interference. It also points to trainings, workshops and consultations with representatives of workers and employers in EPZs on the applicable legislation, promotion of labour rights and best practices. Taking note of the above, the Committee recalls that while the BLA and the ELA contain provisions which prohibit certain acts of interference, they do not cover all acts prohibited under Article 2 of the Convention, such as acts designed to promote the establishment of workers’ organizations under the domination of the employer, to support workers’ organizations by financial or other means with the objective of placing them under the control of an employer or an employers’ organization and to exercise pressure in favour or against any workers’ organization. The Committee therefore requests the Government once again, including in the framework of the legislative reform, to engage in consultations with the social partners, with a view to broadening the current scope of protection against acts of interference both in the BLA and in the ELA. The Committee trusts that, in the meantime, efforts will be made to ensure that, in practice, workers’ and employers’ organizations will be protected from any acts of interference against each other.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee encouraged the Government to consider amending Rule 202 of the BLR, which prohibits certain trade union activities in a way that could impinge on collective bargaining. The Committee observes with regret that although the BLR were amended in 2022 and the TU-ILS submitted a proposal for amendment in 2023, Rule 202 has not been substantially modified. Observing the Government’s indication that this issue may be considered in further amendments to the BLR following the 2023 BLA amendment, the Committee trusts that Rule 202 will be amended to ensure that it does not unduly impinge on the right to collective bargaining.

Higher-level collective bargaining. In its previous comment, the Committee requested the Government to consider further revisions to sections 202 and 203 of the BLA so as to clearly provide a legal basis for collective bargaining at the industry, sector and national levels. It also requested the Government to continue to provide statistics in relation to higher-level collective agreements concluded and in force. The Committee notes the Government’s indication that: (i) collective bargaining is conducted at the level of the enterprise or industry, except for wage fixation in the tea and shipping sectors, which are done at the sectoral level; (ii) despite provisions to this effect (section 210(3) of the BLA), employers generally fail to submit concluded bipartite collective agreements to the DOL, leading to a lack of statistics on this point but training programmes are being used to sensitize employers on this issue; (iii) when bipartite negotiations do not lead to an agreement, they are referred as disputes to the DOL and resolved through tripartite negotiations; and (iv) the DOL was involved in 34 such demands between January 2018 and May 2023, 32 of which were settled. The Committee also notes, from the Government’s report under the article 26 proceedings before the Governing Body, that the DOL has developed a road map on social partners’ awareness and capacity building for social dialogue and collective bargaining at all levels. Furthermore, according to the TU-ILS, workers’ organizations are in favour of creating a legal basis for collective bargaining at the sectoral and national levels. Taking note of the above, the Committee requests the Government to take, in consultation with the social partners, the necessary measures, including of a legislative nature, to ensure that collective bargaining is allowed and promoted at all levels, including at the sectoral and national levels, both in law and in practice. The Committee also requests the Government to continue to engage in training of employers to increase compliance with section 210(3) of the BLA so as to allow for collection of statistics in this regard.

Collective bargaining in the agricultural sector. The Committee requested the Government to provide any available statistics on collective bargaining in the agricultural sector and to clarify the functioning in practice of tripartite negotiations in the sector. The Committee notes the Government’s indication that there are 38 registered trade unions in the agricultural sector covering 6,834 members but that the DOL has not received any charters of demands from such unions. According to the TU-ILS, the excessive minimum membership requirement of 300 workers to create a trade union in the sector prevents trade union formation and collective bargaining. In light of the above and referring to its comments under Convention No. 87 on the minimum membership requirements, the Committee requests the Government to take, both in law and in practice, and in consultation with the social partners, active measures to promote collective bargaining in the agricultural sectorand to clarify the functioning in practice of tripartite negotiations in the sector, previously mentioned by the Government.

Determination of collective bargaining agents. In its previous comment, the Committee requested the Government to clarify whether, in a case where no union reaches the required threshold to be recognized as the exclusive collective bargaining agent under section 202 of the BLA, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Government informs that if there are more unions in an establishment, they either elect a collective bargaining agent or the Director General of Labour can, upon application by either of the unions or the employer, hold a secret ballot to determine which union will be the collective bargaining agent for the establishment. According to the Government, in practice, at least one union reaches the required threshold to be the exclusive bargaining agent under section 202(15)(e) of the BLA. Further noting the Government’s indication that simplification of the determination process is being considered as part of the revision of the BLA, the Committee requests the Government to provide information in this regard and to ensure that, where no union reaches the required threshold for the acquisition of the exclusive bargaining agent status under section 202 of the BLA, the existing unions can negotiate, jointly or separately, at least on behalf of their own members.

Promotion of collective bargaining in EPZs. In its previous comment, the Committee requested the Government to continue to provide statistics on collective bargaining in EPZs and to endeavour to further amend section 180 of the ELA to ensure that the determination of collective bargaining agents is the prerogative of an independent body. The Committee also requested the Government to clarify the implications in practice of section 117(2) which does not allow any proceedings before a civil court for the purpose of enforcing or recovering damages for breach of any agreement. While noting the Government’s indication that Workers’ Welfare Associations (associations formed for the purpose of regulating relations between workers and employers – WWAs) can engage in collective bargaining and are performing their activities in full freedom, the Committee observes that the Government does not provide any information on the Committee’s previous comments. It also observes that the issue raised in relation to section 180 of the ELA (determination of the legitimacy of a WWA and its capacity to act as a collective bargaining agent by the Executive Chairperson) has been reproduced in Rule 195 of the EPZ Labour Rules. Furthermore, the ITUC alleges that the situation of workers in EPZs worsened with the implementation of the ELA, as workers can only join WWAs, where they may not be given the full scope of collective bargaining. In view of these concerns, the Committee requests the Government once again to endeavour to amend section 180 of the ELA and to take further measures to promote collective bargaining in EPZs. It also requests the Government to provide statistics on collective bargaining agreements in EPZs and to clarify the implications in practice of section 117(2) of the ELA.

The Committee also observes, from the EPZ Labour Rules that: (i) Rule 4 gives the Additional Inspector General discretion to shape the outcome of service rules and determine their conformity with the law; (ii) Rule 130(4) provides that the EPZ Wage Board can function with a quorum of 50 per cent of all members including the chairperson and one representative from workers and employers each and allows for proceedings in subsequent meetings not to be interrupted in the absence of any such member; and (iii) Rule 131(6) allows the chairperson to remove any member if it is contrary to public interest, for misconduct or any other reason. The Committee recalls that, according to Article 4 of the Convention, collective bargaining takes place between employers or employers’ organizations and workers’ organizations, and that collective bargaining must be free and voluntary and respect the principle of the autonomy of the parties (2012 General Survey on the fundamental Conventions, paragraph 200). The Committee requests the Government to provide information on the application of these Rules in practice and, in particular, to ensure that Rule 4 is not used to limit collective bargaining.

Compulsory arbitration in the ELA. The Committee recalls from its previous comment that sections 131(3)-(5) and 132 of the ELA read in conjunction with section 144(1) allow for unilateral referral of disputes to EPZ Labour Court which could result in compulsory arbitration. Taking note of the Government’s indication that the Committee’s recommendations will be taken up by the Tripartite Standing Committee at the time of review of the ELA, the Committee expects the Government to ensure that the issue is properly addressed and recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), in essential services in the strict sense of the term or in cases of acute national crisis.

Articles 4 and 6. Collective bargaining in the public sector. The Committee requested the Government to indicate whether trade unions in the public sectors previously referred to by the Government (sector corporations, city corporations and municipalities, port authorities, secondary and higher secondary education boards, water development boards, energy sectors, banks and financial institutions, power sectors, jute mills and sugar mills) have the right to undertake collective bargaining and to provide examples of collective bargaining agreements. While noting the Government’s indication that between January 2018 and May 2022 there were 32 collective bargaining agents formed in the public sector and the DOL settled 12 cases of charters of demands in 12 different public sectors, the Committee observes that the Government does not clarify whether organizations in all of the mentioned sectors can undertake collective bargaining and it does not provide examples of specific collective agreements.

The Committee further recalls from its previous comment the distinction made by the Government between public autonomous organizations, in which workers can form trade unions, and other public sector entities. The Government also indicated that only staff and not officers of public autonomous organizations can form trade unions. The Committee requested the Government to provide a list of public sector services or entities where collective bargaining is not allowed and to indicate the criteria used to distinguish between staff and officers for the purposes of collective bargaining. The Committee notes the Government’s indication that, in line with section 1(4) of the BLA, collective bargaining is not allowed for the Government or any office under the Government (except the railway department, posts, telegraph and telephone departments, roads and highways department, public works department, public health engineering department and Bangladesh Government press), security printing press and ordnance factories. In accordance with Article 6 of the Convention, the Committee recalls that, only public servants engaged in the administration of the State may be excluded from the scope of the Convention while all other persons employed by the Government, by public enterprises or by autonomous public institutions, should benefit from the guarantees provided for in the Convention (General Survey of 2012 on the fundamental Conventions, paragraph 172). The Committee therefore requests the Government to ensure that collective bargaining is granted to all workers covered by the Convention, including public sector workers and public servants not engaged in the administration of the State. It requests the Government to clarify whether trade unions in the sectors previously referred to by the Government have the right to undertake collective bargaining and to provide examples of collective bargaining agreements concluded in the public sector. The Committee also requests the Government to indicate the criteria used to distinguish between staff and officers for the purposes of collective bargaining.

Collective bargaining in practice. The Committee, in its previous comment, expressed hope that significant progress would be made to bring both the legislation and the practice relating to collective bargaining into conformity with the Convention. In reply, the Government informs about progress made in the promotion of effective conciliation and arbitration as a means of alternative dispute resolution. The Committee further notes the measures mentioned above in relation to higher-level collective bargaining and observes from the Government’s statement to the Governing Body during the article 26 proceedings that amendments were made to the BLA to provide for SOPs on expert support during collective bargaining. The Committee, however, notes in this regard that the ITUC alleges that trade unions face serious obstacles when carrying out their activities which is demonstrated by the low number of collective agreements signed, including in the garment sector where only four trade unions reached an agreement with their management through conciliation. The Committee further observes that, according to ILOSTAT, the coverage of collective bargaining in 2020 was only 1.6 per cent. In view of the above, the Committee requests the Government to step up its efforts in bringing both the legislation and practice in line with the Convention and to take active measures to promote collective bargaining as a means of achieving balanced and sustainable industrial relations.

Finally, noting the Government’s indication that all relevant ministries and departments have been engaged in the implementation of the road map established to address all outstanding matters contained in the article 26 complaint, and recalling the overlapping nature of these matters and those raised in the present comment, the Committee expects full and genuine engagement of the Government in addressing these issues. In particular, the Committee firmly expects any upcoming measures taken by the Government, including any legislative amendments, to duly take into account the Committee’s present and previous comments to achieve a timely implementation of the road map and full compliance with the Convention.